Philosophy of Law and Legal Theory: Historical and Contemporary Perspectives—Theme 'Justice Based on Truth'

Dear Colleagues,

This Special Issue of Laws, “Philosophy of Law and Legal Theory: Historical and Contemporary Perspectives—Theme 'Justice Based on Truth'”, provides a forum for the discussion of core issues in the philosophy of law and legal theory from both historical and contemporary perspectives. In this way, the editors hope to promote debate on fundamental questions concerning law from a scientific–theoretical perspective.  

For the first edition of “Philosophy of Law and Legal Theory: Historical and Contemporary Perspectives—Theme 'Justice Based on Truth'”, we are interested in the basic business of the philosophy of science to arrive at “true” and “certain” knowledge in order to be able to determine the “just” parameter of law. Only such cognition and such knowledge, that is informed about itself, can and may speak critically of the things that constitute our world. Thus, the philosophy of science is the necessary basis to a qualified philosophy of law. Not political power as such, but the power of the intellect and power based on honesty, which must anchor within us,^[1] help to develop a justice on truth, according to which people can act correctly. Then, law has its own effective power, which is able to shape and direct human life in society and state, for the right, the good and the true is not equal to what appears useful or success related.^[2]

In my view, the really pressing questions in the philosophy and theory of law today are not so much questions of the concrete implementation and use of rights, with which the majority of expert speakers from jurisprudence and political philosophy are already concerned, but rather the central question of the basis on which law must be founded in order to be just. This classical perspective deserves increased attention, especially in view of today's worldwide confusion, in which soon no one seems to know any more what really “is”, what is “true”, or “important”. It is two different things: to have the technical possibility to spread lies and half-truths via social media instead of facts, or to claim to have a right to do so. Has there ever been a right to generate alternative facts of arbitrary, selfish, opinionated, or conspiracy-based and manipulative talking points? Such attempts must be clearly opposed. Truth in the sense of the philosophy of science relies on facts, not on opinions and doctrines. The true factual situation has to be defended, as fact-oriented investigative journalism in particular is doing today in the political debate—often at personal sacrifice. I have wondered where the philosophers of law have been offering just an intellectual sacrifice. In fact, we see more and more often that this is not only a problem in politics but also in the sciences, wherein research results are distorted in some way in order to gain academic recognition or economic success, or researchers support official politics, which is of no use to anyone or anything.

Only correct and complete ideas about things enable us to develop autonomous and critical thinking. Only then do we have that safe ground from which we can attend to and discuss the core question of any philosophy of law, namely the question of justice. This fundamental question is crucial, especially for lawyers, in order not to become stooges of a system but to bring in their own critical thinking and to solve a case or a problem according to the law in form of a statute but also according to the basic constitutional and international law ideas. In this way, “justice” is the term that signifies the balance between people as persons and their actions in social exchange. It means regulation with regard to the equality and equal value of people, their responsibility for each other, and their mutual solidarity to save freedom for all.

Philosophical “truth” is a methodological term. For this, we can take up with K’ung Fu-Tse, for example, namely, to be able to name things appropriately and correctly.^[3] It is the old problem of the “adaequatio rei et intellectus” in the European tradition. However, a procedurally transparent acquisition of expertise ("knowledge") in a step-by-step process of argumentative differentiation (via sources, as is often the case in our fields of the humanities and cultural sciences) can also be thought of as a form of approach in the sense of “objectification”. In any case, the variants of this theory are reflected in theories of “correspondence”, “coherence”, “intersubjectivity”, or in the numerous so-called “deflationist theories of truth”, which have been discussed in the context of “justice” up to the present day^[4]; that is why they should be taken into consideration. Nevertheless, we prove ourselves more thoroughly as seekers and questioners than as assertors, as this kind also constitutes us as thinkers.

The legitimation of autonomous thinking thus results from the righteousness of self-reflective and critical thinking itself; this thinking can, and indeed must, be recognised and guaranteed without condition. In reference to Spinoza, the concession to free critical thinking does not pose a risk to the stabilisation of a state.^[5] Rather, the positive effect of critical thinking can be compared to hired hackers testing and identifying the weak points of an IT system. Thus, they are rewarded for their inventiveness because they thereby show where the system is vulnerable and can be subverted. In this way, they help to improve the suitability and stability of a system. The autonomy of critical thinking can therefore be accepted without hesitation because it fulfills the same hacking function.

Ronald Dworkin's classic modern philosophy of law is suitable for such a discourse, as it deals with all these questions of “correct” knowledge, the “truth” of foundations and “justice” in a clear and detailed manner and, in addition to aspects of practice, as it also deals with important pioneers in the history of the philosophy of law. ^[6]  It may therefore provide the frame of reference for the present discourse in the sense of discussing the core question of “Justice on Truth”.

[1] Cf. Marcel Senn, Rechts- und Gesellschaftsphilosophie. Historische Fundamente der europäischen, nordamerikanischen, indischen sowie chinesischen Rechts-und Gesellschaftsphilosophie. Eine Einführung mit Quellenmaterialien. Mit einem Gastbeitrag zum «Sinomarxismus» von Prof. Dr. phil. und Dr. iur. Harro von Senger, Zürich/St. Gallen Dike/Nomos: Baden-Baden, 2.A., 2017, pp. 6-8. (translated: Philosophy of Law and Society. Historical foundations of European, North American, Indian and Chinese philosophy of law and society. An introduction with source materials. With a guest contribution on "Sinomarxism" by Prof. Dr phil. and Dr iur. Harro von Senger, Zurich/St. Gallen Dike/Nomos: Baden-Baden, 2nd edition, 2017). The first edition of 2012 has been translated into Chinese by Prof. Liu Yi and edited under the title 法哲学与社会哲学, 中国政法大学出版社by China University of Political Science and Law Press, 2016.

[2] Cf. Cicero, De officiis, Lib. III. 35.

[3] Cf. K’ung Fu-tse, Lun-yu, XIII.3.

[4] Cf. Ronald Dworkin, Justice for Hedgehogs. The Belknap Press of Harvard University Press. Cambridge (MA)/ London, 2011, notably Chap. 8, pp. 172-188.

[5] Cf. Spinoza, Tractatus Theologico-Politicus (1670), Motto.

[6] Cf. Dworkin (cf. Fn. 4).

Prof. Dr. Marcel Senn
Guest Editor

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• philosophy and history of law
• legal theory
• epistemology
• truth
• justice